Think Tank

Should Health Care Providers Receive Special Protection From Secret Taping?

Close-up shot of the photo cameras on the back two mobile phones.

Secretly taped conversations with Planned Parenthood employees last year, recorded by a California anti-abortion activist who disguised his identity, sparked multiple investigations and a political backlash against the family planning organization.

As edited, the videos portrayed Planned Parenthood employees talking about selling aborted fetal tissue. The videos were later were found to be deceptive.

Now, Planned Parenthood Affiliates of California has sponsored a bill, AB 1671, that would make it a crime in the state to distribute the contents of an illegally obtained, private conversation with a health care provider. In California, it’s already illegal to record a private conversation without consent from everyone involved.

The state Legislature approved the bill on Aug. 31, with ample margins of support in both chambers. Gov. Jerry Brown must decide by the end of September whether to sign or veto it. If he does nothing, the bill will become law.

Proponents of the bill say medical providers, and especially those who work in reproductive health care, need extra protection from violence and political recrimination. Opponents say current law already provides protection, and that the proposed new law could deter whistleblowing and hinder the freedom of the press.

The bill, introduced by Democrat Jimmy Gomez, is supported by organizations such as the California Medical Association and the American Congress of Obstetricians and Gynecologists. Opponents include the American Civil Liberties Union and Electronic Frontier Foundation, a nonprofit that defends civil liberties in the digital realm.

To learn more about the debate over the proposed law, we spoke with Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California; Kevin Baker, legislative director of ACLU of California Center for Advocacy & Policy; and Adam Schwartz, senior staff attorney at the Electronic Frontier Foundation.

The transcripts below have been edited for length and clarity.

Reproductive Health Workers Deserve Protection

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California

Q: What prompted the proposed legislation?

Last summer, Planned Parenthood was targeted with a smear campaign by an organization called the Center for Medical Progress. They posted very heavily digested and manipulated videos of private conversations they had had with our medical providers and others.

Q: What was the impact of the videos’ release?

It had an enormous impact. In the first place, millions and millions of people saw the videos. The videos were sent to state legislatures and Congress as well as to the media. One of the most significant impacts was an enormous increase in violence and harassment against both our medical providers and our health centers … that culminated with the shooting at one of our health centers in Colorado that left three people dead and nine others seriously injured.

Another impact was that 28 different state legislatures then moved to defund Planned Parenthood on the ground[s] that we were “selling baby parts,” which was a complete falsehood. Every state that has investigated the allegations has concluded that we did nothing wrong.

Q: What specifically would the bill do?

In looking at what happened … we found that while it is illegal to tape a private conversation in California, it is not illegal to distribute an illegally taped communication. And it is the distribution that causes all of the harm. This is particularly true with social media. We were looking at what we could do to provide a stronger deterrence to prevent this from happening again, to protect our medical providers and to ensure continued access to reproductive health care in California.

Q: What would the penalty be if someone were to distribute an illegally recorded conversation?

The criminal penalty [would be] $2,500 per violation. So if you sent the recording to 10 media outlets or posted it — in our case each of these videos was posted many, many, many times — that get you more significant fines.

Q: What do you think of the argument by the bill’s opponents that it is too broad and could harm whistleblowers, lawyers and others? 

First, it is ironic the ACLU is taking that position, because during the legislative process they kept arguing that it was too narrow because we were limiting it to health care providers. I don’t know what their argument is. There is an entire statutory scheme for whistleblowers and this does not impact that at all.

Q: There has also been opposition from news organizations. The bill was amended because of concerns that journalists could be held criminally liable for distributing such tapes, correct?

From the very inception we worked hard to craft a bill that would not penalize media organizations as long as they did not participate in the underlying activity. We went through many series of amendments to really assuage their concerns … We made it very clear that the bill only is directed at those who do the underlying illegal activity.

Bill Misguided, Not Necessary

Kevin Baker, legislative director of ACLU of California Center for Advocacy & Policy
Adam Schwartz, senior staff attorney at the Electronic Frontier Foundation

Q: What are your main concerns about the bill?

Baker: ACLU is concerned about privacy and reproductive freedom, as is Planned Parenthood. But we have to look carefully at how the legislation is written to see what it would actually do. In this case, the proposal is to create a new crime. And what is strange about this new crime from our perspective is that it would apply only if one of the people involved in the conversation is a health care provider.

At first glance you might think this is about protecting health care information but that is actually not what the bill says. The bill applies even if the conversation has nothing to do with health care of medical information or any other sensitive information.

Schwartz: We think there are existing protections in California of conversational privacy that already are very powerful. Most states only have what are called one-party consent laws, meaning that if you are in the conversation you can secretly record it. But California is among the minority … that are all-party consent states.

Q: Why it is a problem to include conversations on all topics?

Baker: We are concerned that this could ensnare or discourage legitimate whistleblowers as well as the innocent recipients of an unlawful reporting, which might include journalists, lawyers, government regulators or frankly even law enforcement itself. We are concerned that it could discourage, deter or prevent people or even subject them to prosecution if they have information that they want to make public.

Q: Do you think the changes in the bill are enough to address the concerns of news organizations, at the minimum?

Baker: Apparently there are some news organizations who believe they can kind of work around this.  But we are concerned that not only they still may be affected but that lawyers might be affected when people want to consult them about information that they might have regarding potentially illegal activities. And for the people who bypass traditional media … if they go to Twitter or they go to Wikileaks or they go to some nontraditional media distribution source, they would be committing a crime.

Q: Planned Parenthood Affiliates of California say that the organization experienced violence and political fallout after the videos were released last year and that this could reduce such problems. What do you think about that?

Baker: That is entirely possible. It is also true, certainly for the folks that have targeted Planned Parenthood, that they appear to be motivated by ideological concerns that may not be deterred by any criminal statutes.

Schwartz: Planned Parenthood has a very real problem, which is that people are trying to restrain the constitutional right to reproductive freedom. There is violence at clinics. That is a very serious problem. What the EFF thinks is that when we try to protect one constitutional right, we have to be very careful not to intrude upon others. We don’t think this law is drawn with the necessary care.

Q: Is there another approach that you would support to protect the right to private conversations?

Schwartz: Conversational privacy is clearly a fundamental American right. The Supreme Court has recognized it and the laws of the federal government and the states have recognized it. We don’t see that more is needed right now to protect conversational privacy.

Baker: Existing law does impose a criminal penalty for recording a confidential conversation. That is true for everybody. We have great sympathy for the really scurrilous campaign against Planned Parenthood. We don’t think that [this legislation] is necessary or appropriate.

This story was produced by Kaiser Health News, an editorially independent program of the Kaiser Family Foundation.